The Tax Laws and Allied Matters

The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com

The Advocate

By Onikepo BraithwaiteOnikepo.braithwaite@thisdaylive.com

Background

The ongoing allegation that the new Tax Laws passed by the National Assembly (NASS)(Harmonised Bills), are different from what was assented to by President Bola Tinubu, GCFR, and gazetted, is scandalous. The allegation borders on forgery, a criminal offence, that is, the alteration of a real document, with the altered document to be used as the genuine one – see Ibe & Anor v Igbokwe & Ors (2012) LPELR-15351(CA). And, worse still, that whatever ‘abracadabra’ may have taken place, happened at the highest level of governance. It is unclear whether the version the President assented to is the same as the Harmonised Bills, or if the Harmonised Bills had been altered by the time the President assented, or whether it is only the Gazette that contains the altered version. But, whichever option it may be, given what we have experienced since Nigeria’s return to democracy in 1999, is this kind of chicanery entirely outlandish?

The alterations that have been made available in the media, appear to have turned the Harmonised Bills into a Draconian Military Decree, giving the Tax Authority, which is under the Executive, excessive powers, while the compliance threshold to be superintended by NASS has been removed, and the role of the courts, reduced or limited. The antithesis of democracy. This isn’t surprising, because it’s almost as if, in 1999, Nigeria simply transformed from a military dictatorship to a civilian one, in which the Executive has consistently tried to arrogate more powers onto itself, or in the alternative, roll all the arms of government into one, with the Executive as the head.

Democracy in Nigeria’s Fourth Republic, hasn’t thrived or operated the way it should, as provided by the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), even though still raging on, is the other debate concerning the unacceptability of the Constitution, being that it is a contraption of the military foisted on Nigerians, and not a document based upon the will of the people. The argument then is, with such a shaky constitutional foundation, can a solid democratic house upheld by the rule of law, stand on it?

Examples of Civilians Excesses/Dictatorship

I was extremely amused, when it was recently reported that Nigeria went to quash a coup attempt in Benin Republic a few weeks ago. What is the difference, between a military dictator and a civilian executive who has absolutely no regard for the rule of law, upholding fundamental rights, or the doctrine of separation of powers? Not too much, except that the former may be more brutal than the latter.

Examples of civilian excesses/dictatorship in Nigeria’s Fourth Republic abound, as successive Presidents and their administrations have all been guilty of same, in one way or the other  – President Obasanjo used excessive force in 1999, when he ordered the destruction of Odi in Bayelsa State, an outing in which the Government claimed that only 40 or so people were killed, as opposed to unofficial reports that put the death toll at over 2,000. President Yar’Adua, as the Governor of Katsina State, adopted Sharia Law contrary to Section 10 of the Constitution, and his administration was accused of excessive force in the extra-judicial killing of the leader of the Boko Haram Group in 2009. President Jonathan’s administration was accused of ‘fantastic’ corruption and excessive interference with the Judiciary, an accusation that has since become the norm with subsequent administrations. President Buhari’s administration had countless allegations of excesses, ranging from disobedience of court orders and disregard for the rule of law, to corruption and support for marauding Herdsmen, treating terrorists with kid gloves, to the purchase of Tucano Jets valued at almost $500 million without Senate approval, to the removal of former Chief Justice Walter Onnoghen through a highly questionable process – see FRN v Nganjiwa (2022) LPELR-58066(SC). President Tinubu’s administration also has allegations of corruption, disregard of court orders and the rule of law, restriction of freedom of expression and arbitrary arrests, particularly using State apparatus against perceived opposition (well, to be fair, the argument on the other side, may be that some of these opposition may have weighty allegations hanging over their heads, such as former AGF, Abubakar Malami, SAN). And, every single one of these Presidents has done nothing to address the unconstitutionality of the adoption of Sharia in 12 Northern States; they have all played ostrich, and turned a blind eye, allowing these Sharia State Governments to oppress their people with the practice of Sharia Criminal Law, enforcing same through the Hisbah Police, instead of getting their AGFs to approach the Supreme Court via Section 232(1) of the Constitution, to seek a judicial review of the adoption of Sharia and a declaration of the unconstitutionality of the action of these 12 States.

When under President Buhari, with gusto and aplomb, the Executive breached Section 38 of the Central Bank of Nigeria Act 2007 (CBN Act) with the Ways & Means, and the Legislature breached its own law, by  approving the Securitisation of the Ways & Means, contrary to Section 38(1) of the CBN Act, no one complained.

So, what then, is a little forgery or alteration between the laws passed by NASS, assented to by the President and gazetted?!

Separation of Powers and Functions

Yes, we are aware that Sections 4-6 of the Constitution set out the separate functions of the three arms of government, the Legislature, Executive and Judiciary respectively, that lawmaking is the exclusive preserve of the Legislature, and not the Executive – see Section 58(1) of the Constitution. The President’s role in this regard, is simply to assent to Bills presented by NASS within 30 days of the presentation (see Section 58(4) of the Constitution). But, in 2023, when President Tinubu assented to the Bill increasing the retirement age of Judges from 65-70, more than 30 days after it had been presented for assent to President Buhari who failed to sign it, it wasn’t re-passed by NASS before being represented to President Tinubu for assent. No one complained about process and procedure then! It is only when someone’s ox (vested interest) is gored, that it becomes a problem. Though this time, it seems that Nigerians are the ones most adversely affected by the tampering in the Harmonised Bills, as it even borders on a breach of rights.

The New Tax Laws Controversy

But, nevertheless, now, the Executive has been accused by a Member of the House of Representatives, Hon. Abdulsamad Dasuki, of amending the Harmonised Bills unilaterally. The procedure is that, if the Executive had issues with the Harmonised Bills, it should have returned them to NASS with the amendments it desires, for NASS’ further approval, instead of gazetting an updated version of the Bills ‘suo motu’. The President only has the power to refuse to assent to a Bill, simplicter. He doesn’t have veto power, or the power to override NASS.

Though I haven’t had the benefit of reading either the Harmonised Bills forwarded for the President’s assent, nor the gazetted laws, it was reported that for instance, under the Harmonised Bills, the Tax Authority is empowered to only investigate, but in what has been gazetted, the Tax Authority is empowered to make arrests using law enforcement. That under the Harmonised Bills, it is implied that a court process is required to freeze an account, as this is what the law provides in Nigeria, but, in the gazetted version, it is reported that funds can be frozen or taken without a court order. This is definitely not any typographical error, but a deliberate attempt to surreptitiously make some fundamental changes that weren’t approved by NASS, to the Harmonised Bills.

In short, instead of the tax regime set up by NASS in such a way that its implementation isn’t arbitrary or autocratic, that the other arms of government are included to play their constitutional roles as checks and balances, in such a matter as important as this that affects all cadre of Nigerians, the Executive stands accused of taking steps in the opposite direction, to turn the tax regime into some sort of harsh, rigid, oppressive tool fully under its control. It follows that the surreptitious back door route may have been the only way for the Executive to go, as it would be highly unlikely that NASS would have approved the alleged amendments, which in essence, practically cut the Legislature out of the process. The Executive saw nothing wrong with stripping the Legislature of its powers and usurping them as its own, by gazetting its own different version of the Harmonised Bills.

Nature of Gazette

In Ogundipe v The Minister of FCT & Ors (2014) LPELR-2271(CA) per Joseph Tine Tur, JCA (dissenting), Gazette was defined thus: “…an official publication of the Federal Government of Nigeria or a State in which the official acts of the government e.g. appointments, notices and other legal matters are reported”. In Our Line Ltd v SCC (Nig) Ltd & Ors (2009) LPELR-2833(SC) per Mahmud Mohammed, JSC, the Supreme Court held inter alia that: “A Gazette therefore, serves as official communication of the Government of Nigeria….”. It is trite that a publication in an official gazette, simply gives notice to the world of whatever information is being communicated – see CBN v Harris & Ors (2017) LPELR-43538(CA); it cannot be elevated into a law, or override a law – see Incorporated Trustees of Remo Club 1937 v Sholarin & Ors (2019) LPELR-47508(CA). In the case of the Tax Laws Gazette communicating or reporting falsehood, it appears that this gazette cannot override the contents of the Harmonised Bills which were validly passed by NASS and forwarded to the President for assent.

Conclusion

So, what is the position of things now? Have the gazetted Tax laws met the constitutional threshold, to qualify as being enacted into law? I think not, because if the Harmonised Bills weren’t what the President assented to, but a forgery, then Section 58(4) of the Constitution hasn’t been fulfilled to bring the Harmonised Bills into law. In Adamu v Akogwu (2023) LPELR-59522(CA) the Court of Appeal held thus: “A forged document stands nullified in its entirety”. Also see Ibe & Anor v Igbokwe & Ors (Supra).

In any event, if a Gazette hasn’t been fully published, or the law hasn’t come into effect, it can be withdrawn. The new Tax Laws are expected to come into effect on January 1, 2026, which means that the Gazette can be withdrawn. It also appears that, by virtue of Section 232(2) of the Constitution, NASS can also take the issue of the act of the purported alterations to the Harmonised Tax Laws by the Executive to the Supreme Court directly, to pray for an injunction to stop the laws from coming into effect on January 1.

For the avoidance of doubt and mischief, it could also be tidier to have the Harmonised Bills re-passed, expressly repealing the Gazette that contains the unauthorised version of the law, and resent for the assent of the President. If the President withholds assent to this original version, NASS can override him by two-thirds majority of both Houses re-passing the laws (see Section 58(5) of the Constitution), and the original version shall become law.

Sceptics however, say they are not holding their breath that anything will be done to correct this alleged forgery of laws/gazette, seeing as Nigeria is almost a one-party State, with the Federal Executive and majority of NASS, and even all State Governments (except for 9 or 10) all being of the APC! That who is left to oppose this strongly enough, to bring about the correction?

I conclude by saying that, the optics of this Tax saga are bad! It portrays dishonesty, at the highest levels of governance.

P.S.

This is our last edition of 2025. I thank you, our Readers, for your support, and wish you all a happy and prosperous 2026 and beyond. Amen. See you in the new year, by God’s grace.

Best Regards, The Advocate!